How Europe is giving the U.S. a lesson in Internet due process

Last week, a European court struck down a rule imposing network-monitoring responsibility on an ISP with regard to copyright infringement, and experts believe the decision could help rein in the spread of SOPA-like laws throughout Europe. Meanwhile, the highly controversial Stop Online Piracy Act (SOPA), which imposes heavy burdens on service providers to sniff out and stop infringing activity, looks likely to pass once U.S. lawmakers actually get around to voting on it.

EU gets it: Censorship and traffic-policing are bad business

The ruling in question stems from a lower-court injunction forcing a particular ISP to make it impossible for its customers to illegally download content from a Belgian authors’ guild catalog. In part, European Court of Justice’s decision is based on a cultural difference regarding personal data: European countries typically treat personal data differently than does the United States, more like a human right (i.e., there are certain things you just can’t do with data) rather than as property that can be contracted away in a site’s terms of service. According to an IDG News Service reporter covering the Belgium decision, the court found that “such a system would require the collection and analysis of content and identification of IP addresses, which is protected personal data under E.U. law.”

Going further, the court noted that placing such a requirement on ISPs wouldn’t be foolproof, making it very possible that legal activity would be prevented by whatever measures an ISP would put in place. The U.S. analogy would appear to be a First Amendment argument, citing freedom-of-speech principles to call any removal of legal content censorship.

But aside from data privacy and freedom of information, the court also cited a European Union directive that the United States should note.

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.

Hefty protections keep due process alive

Even where the provider is hosting infringing content a la YouTube, the EU directive prohibits liability as long as the provider removes or otherwise cuts access to that content once it’s made aware of the content’s presence. This actually makes EU law similar to the U.S. Digital Millenium Copyright Act with regard to hosting infringing content rather than just transmitting it over the network, but the Directive on Electronic Commerce doesn’t provide the process by which countries should mandate takedown. As I explained recently, those types of requirements are problematic when they force service providers to act without any decision from a court or based on any objective legal proceeding.

According to BBC News, the decision from Belgium won’t have a direct effect on existing British law — even the United Kingdom’s Digital Economy Act that BT and TalkTalk are challenging in court as a violation of EU law — but should help to ensure that even more-draconian laws don’t take effect in that country. By comparison with SOPA, and even the DMCA, the Digital Economy Act seems downright reasonable: Service providers can be required to remove or disable access to content only after a court, parliament and the Secretary of State have answered a defined set of questions and consented to the decision.

The United States doesn’t seem to get it

As it’s written, SOPA would require service providers to take down or disable access to certain sites after a court order, but it’s hard to see how those would be very hard to come by considering courts would just be hearing the government’s (read “content owner’s”) side before deciding whether to issue the orders. The DMCA doesn’t involve any legal institution at all, just a form letter from someone claiming copyright ownership and infringement. But SOPA’s semblance of due process comes with a harsher penalty: Rather than just content being removed, whole web sites could disappear completely.

SOPA doesn’t stop there, though. It also requires service providers to proactively monitor user behavior to some yet-undefined level or risk sanctions, and they can be subject to SOPA’s wrath if they serve to prop up or steer consumers to infringing sites, even inadvertently. It’s for these reasons that some experts foresee SOPA as a tool to let copyright holders do an end-run around the DMCA.

So, if you’re for due process, freedom of speech and Internet freedom as opposed to forcing ISPs to play traffic police, it’s easy to see where U.S. policy regarding intellectual property on the web is flawed. While Hollywood is smiling, everyone else is cringing. The EU seems to understand the appropriate balance between enabling the Internet and enforcing copyright on it. Deep down, I suspect U.S. lawmakers do, too; SOPA is just too much. Perhaps the Internet lobby needs to step up its spending on Capitol Hill.